How does Canada's Temporary Foreign Worker Program compliance work?
Canadian Employers are responsible for:
ensuring they meet all of the conditions and requirements of the Temporary Foreign Worker (TFW) Program;
documents such as the Labour Market Impact Assessment (LMIA) application, the LMIA decision letter, and annexes;
keeping all records associated with their LMIA application and any other documents that demonstrate their compliance with the program conditions that are set out in the LMIA decision letter and annexes for a period of six years; and
informing Employment and Social Development Canada (ESDC)/Service Canada of any changes or errors relating to an approved LMIA, the temporary foreign worker, or the working conditions.
Employers must regularly review the activities related to the employment of temporary foreign workers to ensure they continue to uphold the TFW Program conditions. Employers are required to take action to rectify errors and/or non-compliance as soon as it is discovered and contact ESDC/Service Canada of any changes that occur.
ESDC/Service Canada, under the IRPA and the IRPR, has the authority to review the activities of any employer using the TFW Program, in relation to the treatment of workers, their LMIA or LMIA application by conducting:
an inspection with or without prior notice to the employer;
an Employer Compliance Review (ECR); and/or
a review under Ministerial Instruction.
If an employer is selected for a review, they will be informed of:
the type of review being undertaken, including the legislative or regulatory authority under which the review is authorized;
the type of inspection, namely whether a site visit and/or interview will be conducted, and the period being reviewed,
the condition(s) for which they need to demonstrate compliance and/or accuracy of the information provided;
specific actions they may need to take, such as providing documents, attending an interview and the timelines; and
consequences of non-compliance or non-response.
The processing of an LMIA application may be delayed if the employer is undergoing a compliance review.
LMIAs may be suspended during a review of any kind. A suspension is temporary and prevents foreign nationals from obtaining a work permit from Immigration, Refugees, and Citizenship Canada (IRCC) while a review is being conducted.
Following the review, the employer will be informed of whether the suspension will be lifted as well as the outcome of the review.
Satisfactory: the employer demonstrates compliance with the conditions that were inspected, or justifies their non-compliance as per the regulations; or
Non-compliant: the employer is not able to demonstrate compliance with the conditions that were inspected, or cannot justify their non-compliance as per the regulations.
Employers subject to one of the three types of review, and who have already submitted or intend to submit a new LMIA application before the review is concluded, should be aware that a positive LMIA may not be issued if the review generates a negative finding (finding of non-compliance). In these cases, the LMIA processing fee will not be reimbursed.
Inspections may occur after a positive LMIA has been issued and the foreign worker has received a work permit and begun working. Inspections may be conducted during a period of six years beginning on the first day of the period of employment for which the work permit is issued to the foreign worker.
Reason for an inspection
An employer who received a positive LMIA since December 31, 2013, where the foreign worker has received a work permit and is/was working for the employer may be selected for an inspection.
There are three reasons an employer could be selected for an inspection:
there is reason to suspect non-compliance
During an inspection, ESDC/Service Canada investigators will verify whether employers have upheld the conditions set out in the offer of employment, as well as the positive LMIA letter and annexes.
Expectations of employers during an inspection
An employer selected for an inspection may be asked to:
answer questions and provide requested documents or information;
attend the inspection;
provide assistance to the investigators;
retain all records that relate to the employer’s compliance with the conditions set out in the LMIA application, letter and annexes for a period of six years from the first day of the period of employment for which the work permit was issued; and
provide any documents that are requested to verify compliance with specific TFW Program conditions (in the time allotted by ESDC/Service Canada).
Consequences for non-compliance under an inspection
Employers found non-compliant as a result of an inspection from a violation that occurred prior to December 1, 2015, could be subject to:
a ban of two years from using the Program;
the publication of their name, address and period of ineligibility published on the IRCC public website;
a negative LMIA being issued for any pending applications, and/or;
the revocation or suspension of previously-issued LMIAs.
Employers found non-compliant as a result of an inspection from a violation that occurred on or after December 1, 2015, could be subject to:
administrative monetary penalties ranging from $500 to $100,000 per violation, up to a maximum of $1 million over one year, per employer;
a ban of one, two, five, or ten years, or permanent bans for the most serious violations; etc.
Employer Compliance Reviews occur as part of the LMIA application assessment process to verify past compliance. On the LMIA application form, returning employers attest to having met TFW Program wages, working conditions and occupation requirements, including the treatment of temporary foreign workers, for previously employed temporary foreign workers.
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Source & Copyright: The source of the above visa and immigration information and the copyright owner is the: Citizenship and Immigration Canada and Immigration Quebec
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